Exhibit 3.1
EXECUTION COPY
AMENDMENT NO. 4 TO FIRST AMENDED
AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
PENN VIRGINIA RESOURCE PARTNERS,
L.P.
THIS AMENDMENT NO. 4 TO FIRST
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF PENN
VIRGINIA RESOURCE PARTNERS, L.P. (this “ Amendment
”), dated as of December 8, 2006, is entered into and
effectuated by Penn Virginia Resource GP, LLC, a Delaware limited
liability company, as the General Partner, pursuant to authority
granted to it in Sections 5.6 and 13.1 of the First Amended and
Restated Agreement of Limited Partnership of Penn Virginia Resource
Partners, L.P., dated as of October 30, 2001, as amended as of
December 19, 2002, March 19, 2003 and
December 8, 2003 (as so amended, the “ Partnership
Agreement ”). Capitalized terms used but not defined
herein are used as defined in the Partnership Agreement.
WHEREAS, Section 5.6(a) of the
Partnership Agreement provides that the General Partner, without
the approval of any Limited Partners, may issue additional
Partnership Securities for any Partnership purpose at any time and
from time to time for such consideration and on such terms and
conditions as shall be established by the General Partner in its
sole discretion;
WHEREAS, Section 5.6(b) of the
Partnership Agreement provides that the Partnership Securities
authorized to be issued by the Partnership pursuant to
Section 5.6(a) may be issued in one or more classes, or one or
more series of any such classes, with such designations,
preferences, rights, powers and duties as shall be fixed by the
General Partner in its sole discretion;
WHEREAS, Section 13.1(g) of the
Partnership Agreement provides that the General Partner, without
the approval of any Limited Partner (subject to the provisions of
Section 5.7 of the Partnership Agreement), may amend any
provision of the Partnership Agreement necessary or advisable in
connection with the authorization of issuance of any class or
series of Partnership Securities pursuant to Section 5.6 of
the Partnership Agreement;
WHEREAS, the General Partner has
determined that the issuance of the Class B Units provided for in
this Amendment is permitted by Section 5.7 of the Partnership
Agreement;
WHEREAS, Section 13.1(d)(i) of
the Partnership Agreement provides that the General Partner,
without the approval of any Limited Partner, may amend any
provision of the Partnership Agreement to reflect a change that, in
the discretion of the General Partner, does not adversely affect
the Limited Partners (including any particular class of Partnership
Interests as compared to other classes of Partnership Interests) in
any material respect;
WHEREAS, the Partnership has entered
into a Units Purchase Agreement, dated as of December 4, 2006
between the Partnership and Penn Virginia GP Holdings, L.P.
(“ PVG ”), as the purchaser (the “
Units Purchase Agreement ”);
WHEREAS, the Units Purchase
Agreement obligates the Partnership to issue limited partner
interests to be designated as Class B Units having the terms,
including rights to distributions or in liquidation, as set forth
in this Amendment;
WHEREAS, the General Partner deems
it in the best interest of the Partnership to effect this Amendment
in order to provide for (i) the creation of the new class of
Partnership Securities provided for in this Amendment (the “
Class B Units ”) and (ii) the conversion of the
Class B Units into Common Units in accordance with the terms
described herein and (iii) such other matters as are provided
herein; and
WHEREAS, the General Partner has
determined, pursuant to Section 13.1(g) of the Partnership
Agreement, that the amendments set forth herein are necessary and
advisable in connection with the authorization of the issuance of
the Class B Units.
NOW, THEREFORE, it is hereby agreed
as follows:
A. Amendment . The Partnership Agreement
is hereby amended as follows:
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1.
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Section 1.1 is hereby amended to add the
following definitions:
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“ Class B Unit ”
has the meaning assigned to such term in
Section 5.12(a).
“ Conversion Approval
Date ” has the meaning assigned to such term in
Section 5.12(g).
“ Conversion Approval
Termination Date ” has the meaning assigned to such term
in Section 5.12(i).
“ Conversion Proposal
” has the meaning assigned to such term in
Section 5.12(g).
“ Conversion Request
Date ” means the date on which there is a meeting of
holders of Common Units called for the purpose of approving a
Conversion Proposal.
“ Distribution Increase
Day ” has the meaning assigned to such term in
Section 5.12(h).
“ Excess Payment
” has the meaning assigned to such term in
Section 5.12(h)(iv).
“ Purchase Date ”
means the closing date under the Units Purchase
Agreement.
“ PVG ” means
Penn Virginia GP Holdings, L.P., a Delaware limited partnership,
and its successors and assigns.
“ Units Purchase
Agreement ” means the Units Purchase Agreement dated
December 4, 2006 between the Partnership and PVG.
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2.
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Section 5.12 is hereby amended and restated
in its entirety as follows:
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Section 5.12 Establishment
of Class B Units .
(a) General . The General
Partner hereby designates and creates a series of Units to be
designated as “ Class B Units ” and consisting
of a total of 3,610,383 Class B Units, and fixes the designations,
preferences and relative, participating, optional or other special
rights, powers and duties of holders of the Class B Units as set
forth in this Section 5.12.
(b) Allocations . For the
period beginning with the Purchase Date up to and including the
date that is one year from the Purchase Date, Section 6.1,
which provides for the allocation of the items of Partnership
income, gain, loss, deduction and credit, shall be applied to the
Class B Units to the same extent as such items would be so
allocated if such Class B Units were Subordinated Units that were
then Outstanding and the Subordination Period had not
ended.
(c) Distributions. For the
period beginning with the Purchase Date up to and including the
date that is one year from the Purchase Date, the Class B Units
shall have the right to share in Partnership distributions and
shall have rights upon dissolution of the Partnership, including
the right to share in any distributions upon dissolution of the
Partnership, in each case to the same extent as if such Class B
Units were Subordinated Units that were then Outstanding and the
Subordination Period had not ended.
(d) Conversion Only Upon Approval
of Conversion Proposal . The Class B Units will not have the
privilege of conversion as set forth in Section 5.8 of the
Partnership Agreement and Section 5.8 shall not apply to the
Class B Units; rather, the Class B Units will be converted only by
approval of a Conversion Proposal pursuant to the provisions of
Section 5.12(g) or the occurrence of the Conversion Approval
Termination Date pursuant to Section 5.12(i) hereof. A Class B
Unit that has converted into a Common Unit shall be subject to the
provisions of Section 6.7(b) of the Partnership Agreement as
if the Class B Unit was a Subordinated Unit.
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(e) Voting Rights . Subject
to Section 13.3(a), the Class B Units will have voting rights
that are identical to the voting rights of the Common Units and
will vote with the Common Units
